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State's Order Is Posted in Southern Woodlands, Bars 'Further Activities'

Top state environmental officials stepped squarely into the fray around the Down Island Golf Club this week, ordering developers Brian Lafferty and Corey Kupersmith to immediately halt all tree cutting in the southern woodlands section of Oak Bluffs.

"You are prohibited from undertaking any further activities on this property," wrote Tom French, assistant director of the Division of Fisheries and Wildlife, in a letter sent to the two developers this week.

Acting under the umbrella of the Massachusetts Executive Office of Environmental Affairs, and in concert with the Natural Heritage and Endangered Species Program, Fisheries and Wildlife issued a formal cease and desist order to Mr. Lafferty and Mr. Kupersmith on Monday this week.

The developers were notified of the cease and desist by certified mail; the order was posted on two trees at the entrance to Mr. Kupersmith's property in the southern woodlands yesterday afternoon.

In the letter Mr. French said the tree cutting may have already destroyed many acres of habitat for two moths that are protected under the Massachusetts Environmental Policy Act (MEPA).

The southern woodlands is listed as a priority habitat for the imperial moth, the pine barrens zale moth, the spiny oakworm moth and the faded gray geometer. The imperial moth and the faded gray geometer are threatened species. The pine barrens and spiny oakworm moths are species of special concern.

Mr. Lafferty is the chief spokesman for Mr. Kupersmith, a Connecticut businessman who has been trying without success to build a private luxury golf course on 277 acres he owns in the southern woodlands.

The Martha's Vineyard Commission has denied three golf course plans and a massive housing plan for the Kupersmith property in the last four years.

The prolonged battle between Mr. Kupersmith and the MVC turned vengeful several weeks ago when Mr. Lafferty announced with great fanfare that the developers would begin clear-cutting the entire property.

The cutting activity attracted the attention of state environmental officials, who paid a visit to the property in December.

The developers have now clear cut at least two large swaths on the property, including a large section of pitch pines in the former Webb's Family Camping Area, and some five acres of scrub oak forest adjacent to Featherstone Center for the Arts.

Pitch pines are the feeding ground for the imperial moth caterpillars. Oak forest that includes black and white oaks is the feeding ground for the spiny oakworm moth.

The Kupersmith property fronts Barnes Road and includes the former camp ground, which sits on a high piney bluff overlooking the extreme southern end of the Lagoon Pond.

"Mr. Kupersmith's entire property is a sensitive area in that it is mapped as a priority habitat of rare species," Mr. French wrote in the letter to the developers.

The presence of the faded gray geometer was identified during a 1999 biological inventory done by Mark Mello, a well-known moth expert.

"We were unaware of the record until last week when we reviewed Mark Mello's 1999 report," Mr. French wrote.

"It is apparent that a majority of the large pitch pine trees in the former camp ground have in fact been cut," he also wrote.

Mr. French told Mr. Kupersmith and Mr. Lafferty that before any more cutting can take place, the developers must obtain a conservation permit. "Your application … must include a plan developed by environmental consultants with specific expertise in invertebrate biology and forestry," Mr. French wrote.

The southern woodlands is the last unbroken stretch of oak and pine forest in Oak Bluffs. The 400-acre woodland was designated a district of critical planning concern (DCPC) several years ago and is affected by a long list of special environmental regulations.

To date, the town has taken no enforcement action against Mr. Kupersmith. It is considered unusual for an environmental enforcement action to begin at the state level.

"The fisheries and wildlife division takes this very seriously," said Felix Browne, the deputy press secretary to state Environmental Affairs Secretary Ellen Roy Herzfelder, in a telephone interview with the Gazette yesterday. "It's not the division's intention to stop productive use of the land, but to regulate it in a way that affords maximum protection for the fragile areas of the Island," Mr. Browne added.

"This is not a sideshow - the property contains no fewer than four state listed species that are protected. . . . We have serious concerns and we are eager to work with the property owner," he also said.

Enforcement action under state environmental laws can include criminal prosecution through the state attorney general if it is determined that a "take" has occurred, a legal term for damaging or destroying a state-listed species.

Mr. Brown said state environmental officials will continue to monitor the situation on Mr. Kupersmith's property.

"Our priority at this time is to assess the extent of potential damage to the environment, and then communicate with the property owner or his agent in order to develop a plan for the future use of the land, a plan that assures maximum preservation of rare species on the site," Mr. Browne said. He concluded:

"The letter speaks for itself - we are very concerned about possible past damage to the environment and want to make sure to prevent such damage in the future."